Argument recap: Present, past, or sometime in between?

Monday’s argument in McNeill v. United States (10-5258) was all about the rule.  The Court was asked to adopt a timing rule under the Armed Career Criminal Act (ACCA).  The ACCA provides a sentencing enhancement for felons convicted of possessing a firearm in violation of § 922(g), when the felon has three previous convictions for “serious drug offenses.”  Three proposed rules were on the table:  (1) McNeill’s rule, under which courts would look to the maximum sentence as prescribed by state law at the time of federal sentencing (regardless of the date of conviction); (2) the government’s rule, which would require courts to look to the maximum sentence at the time of the conviction; and (3) the Fourth Circuit’s rule, which would have courts look to the maximum sentence at the time of conviction, unless the state has since amended it and applied those amendments retroactively.  McNeill can only prevail under the first option.

Despite an effort by Assistant Federal Public Defender Stephen C. Gordon to frame the argument in the broad concepts of the purpose of the ACCA, respecting the normative judgments of states, and fairness to defendants, the Court quickly narrowed its focus to the untenable consequences of Mr. Gordon’s proposed rule.  In McNeill’s case, North Carolina reduced the maximum sentence for his drug offenses between the time of conviction in the early 1990s and his federal sentencing under Section 922(g).  As Justice Sotomayor quickly pointed out, this would not always be the case:  “if a state increases a penalty [and] makes what would have been a penalty for a misdemeanor now a felony, then that defendant is a career criminal, by your logic.”  Justice Sotomayor’s question would continue to haunt Mr. Gordon throughout the remainder of the short forty-minute argument.

Although McNeill’s brief asserted a strong textual argument focusing on the use of the present tense in the statute – “is prescribed” – Mr. Gordon did not press that argument before the Court.  In response to Justices Alito and Kagan’s questioning of whether the “present tense” would apply to a change in the state’s definition of an offense, Mr. Gordon answered that this would be necessary for consistency in the statute.

Although Mr. Gordon continued to return to his arguments regarding fairness and purpose, highlighting that the government’s position would apply unequally across defendants and that it did not embrace the state’s current normative attitude toward the offense, he encountered skepticism from the Justices.  The Chief Justice, for example, questioned whether North Carolina’s change in sentencing was actually a normative change or just administrative.  Mr. Gordon responded only that it was the state’s “proxy” for “seriousness.”   And Justice Scalia reiterated Justice Sotomayor’s impression from the very beginning, raising the prospect that McNeill’s rule would “put away for a long time somebody who really wasn’t that bad a guy.  He committed a misdemeanor, and when the state later makes it a felony, he suddenly comes under [the] ACCA.”  After a short attempt to clarify the technical differences between a misdemeanor and a felony, Mr. Gordon reaffirmed his position that, yes, this was the consequence of his rule.

Justice Scalia expressed support for the Fourth Circuit’s rule – which, he emphasized, also accounts for Congress’s use of the present tense.  If the state chooses to make any change to the law retroactive, than it should be applied accordingly.  If not, the sentence at the time of conviction should control.  In this case, Justice Scalia noted, “[t]he maximum term for [McNeill’s] offense when he committed it is those years because the state did not retroactively reduce his sentences.”

But the government did not advance this particular position beyond a footnote in its brief and backed away from it in its argument.  The government would only permit a defendant to obtain the benefit of a retroactive amendment if he actually applied for a modification of his sentence.  Arguing for the United States, Assistant to the Solicitor General Curtis E. Gannon instead pressed the government’s actual position:  the federal sentencing court should only look to what was the maximum sentence prescribed by state law at the time of conviction.

Gannon seized on Justice Sotomayor’s line of questioning.  Under the government’s rule, he emphasized, no one would be subject to the ACCA if the state increased its maximum sentence after that defendant’s conviction, allaying Justice Sotomayor’s concerns.

And when Justice Alito broached McNeill’s normative argument, asking what would happen if the legislature were to “decrease[] the penalty because it really has taken a . . . new look at the nature of the offense and has come to the conclusion that this really is not nearly as serious as . . .previously thought,”  Mr. Gannon responded that the state could express that normative view through making the new sentence retroactive.  He held his ground, though, on the government’s argument that a defendant would actually have to be eligible for a modification to take advantage of such a change.

Justice Scalia reiterated that this additional step would not be necessary under his – and the Fourth Circuit’s – preferred reading of the ACCA.  And Justice Sotomayor wondered how often states actually do make these changes retroactive – not that often, it seems, due to ex post facto savings statutes.  But, as Mr. Gannon countered, “[a] state legislature, if it wants to be express about the retroactive applicability of a change, would be able to do that.”

Mr. Gordon used his remaining rebuttal time to try to refocus the Court on the normative arguments.  But, as he continued uninterrupted, it seemed too late.  Justice Sotomayor’s point that some defendants might end up worse off had already undercut the appeal to “fairness.”  The government had offered the more consistent position, and the Court seemed to embrace it.